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02/23/89 Eleanor Young, v. Chicago Federal Savings

February 23, 1989

ELEANOR YOUNG, PLAINTIFF-APPELLEE

v.

CHICAGO FEDERAL SAVINGS AND LOAN ASSOCIATION, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

535 N.E.2d 977, 180 Ill. App. 3d 280, 129 Ill. Dec. 212 1989.IL.230

Appeal from the Circuit Court of Cook County; the Hon. David G. Lichtenstein, Judge, presiding.

APPELLATE Judges:

JUSTICE JOHNSON delivered the opinion of the court. McMORROW and LINN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JOHNSON

Defendant, Chicago Federal Savings and Loan Association (hereinafter Chicago Federal), appeals from the order of the circuit court of Cook County that denied its motion for summary judgment and granted the summary judgment motion of plaintiff, Eleanor Young, and entered judgment in her favor for $14,362.86, plus costs. The sole issue for review is whether the trial court erred in granting plaintiff's motion for summary judgment and denying defendant the same.

We affirm.

On or about October 26, 1971, defendant received a mortgage from nonparty Connie Foster to secure a note for $21,500. The mortgage referred to property located at 10635 South La Salle Street, in Chicago. On or about November 26, 1971, Chicago Title Insurance Company (hereinafter Chicago Title) issued its loan policy insuring the mortgage.

During the term of the policy, the real estate taxes on the mortgaged property became delinquent. The taxes were paid by a third party who eventually acquired a tax deed for the property, which extinguished defendant's mortgage interest. On April 14, 1980, defendant was informed that the Atlantic Municipal Corporation had been granted a tax deed for the subject property. By letter, dated April 24, 1980, defendant informed Chicago Title, its insurer, of the existence of the tax deed and inquired into what action it intended to take. Chicago Title declined coverage, stating that its policy does not insure against liens attaching after the date of the policy.

On September 4, 1980, by an assignment of mortgage, defendant assigned to plaintiff, as nominee for nonparty Stanford D. Marks, the mortgage "together with all of assignor's right, title and interest in and to (a) the note, notes, accrued interest and other obligations secured thereby and payable in accordance therewith, and (b) the real estate assigned therein." In consideration for the assignment, plaintiff paid the sum of $5,000. On September 4, 1980, Howard F. Lass, vice-president of Chicago Federal, mailed to plaintiff several documents, including a copy of the title policy.

On August 11, 1981, Chicago Title informed defendant that it would reimburse it for its loss in the sum of $14,362.86 in order to maintain a sound business relationship. Despite plaintiff's repeated demands to receive these proceeds, defendant denied her entitlement to such proceeds. Therefore, on November 3, 1982, plaintiff filed a complaint at law in the circuit court of Cook County. On January 12, 1983, the complaint was stricken on defendant's motion to dismiss or strike. Plaintiff filed an amended complaint on January 24, 1983. Defendant's motion to dismiss or strike the amended complaint was denied on May 25, 1983. Thereafter defendant filed its answer.

On December 22, 1983, both parties were granted leave to file cross-motions for summary judgment. Plaintiff filed her motion for summary judgment without supporting affidavits. Defendant provided the affidavits of Lass and Lawrence Sulzbacher to support its motion for summary judgment. On June 19, 1987, the trial court denied defendant's motion for summary judgment and granted plaintiff's motion for summary judgment and entered judgment in favor of plaintiff for $14,362.86, plus costs. Defendant's motion for reconsideration of the final order and judgment was denied on September 29, 1987. This appeal followed.

Defendant contends that the trial court erred in granting plaintiff's summary judgment motion and advances several arguments to support its contention. Defendant first argues that plaintiff failed to establish an assignment of the policy; therefore, she was not entitled to summary judgment.

"[Summary] judgment will be granted only if the pleadings, affidavits and depositions on file reveal that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law." (Murphy v. Urso (1981), 88 Ill. 2d 444, 464.) The sole function of this court in reviewing an entry of summary judgment "is to determine whether the lower court correctly ruled that no genuine issue of material fact had been raised and, if none was raised, whether judgment was ...


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